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Candy Clay v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 15, 2013

CANDY CLAY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In this action, plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner").*fn1 After plaintiff turned 18, the Commissioner re-determined plaintiff's eligibility for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act") based on the rules for determining disability in adults, and found that plaintiff's disability had ended on May 1, 2009. In her motion for summary judgment, plaintiff contends that the Commissioner erred in determining that plaintiff's disability had ceased. (Dkt. No. 14.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 15.) Thereafter, plaintiff filed a reply brief. (Dkt. No. 16.) For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.

I. BACKGROUND

Plaintiff was born on August 9, 1990, has an eleventh grade education, and has no past relevant work.*fn2 (Administrative Transcript ("AT") 20, 35, 91-94.) She received SSI benefits under Title XVI of the Act as a disabled child, primarily due to asthma and a learning disorder. (AT 207-19.) After plaintiff turned 18, her eligibility for these benefits was redetermined under the rules for determining disability in adults, and on May 8, 2009, the Commissioner found that plaintiff was no longer disabled as of May 1, 2009. (AT 10, 91, 95-98.) On May 12, 2010, this determination was upheld upon reconsideration after a hearing before a state agency disability hearing officer. (AT 10, 115-24.) Subsequently, plaintiff requested a hearing before an administrative law judge ("ALJ"). (AT 10, 132-34.)

ALJ Theodore Slocum conducted three hearings in this case. At the first October 7, 2010 hearing, the case was continued to allow plaintiff to obtain representation. (AT 78-87.) At the second December 7, 2010 hearing, the case was again continued to obtain further medical records from plaintiff's treating providers. (AT 67-77.) A third hearing was conducted on January 27, 2011. (AT 29-66.) Plaintiff did not obtain counsel at the administrative level, and appeared at all three hearings without counsel. (AT 10.) After the three hearings, ALJ Slocum became temporarily incapacitated, and the case was reassigned to ALJ Joseph De Pietro. (Id.) After ALJ De Pietro reviewed the record, as well as the instructions/notes by ALJ Slocum, ALJ De Pietro determined that another hearing was not required. (Id.) ////

In a decision dated May 12, 2011, ALJ De Pietro determined that plaintiff's disability had ended on May 1, 2009, and that plaintiff had not become disabled again since that date. (AT 21-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 7, 2012. (AT 1-3.) Thereafter, plaintiff filed this action in federal district court on March 8, 2012, to obtain judicial review of the Commissioner's final decision. (Dkt. Nos. 1-3.)

II. ISSUES PRESENTED

Plaintiff has raised the following issues: (1) whether the ALJ failed to adequately develop the record; (2) whether the ALJ improperly weighed the medical and psychological opinion evidence; (3) whether the ALJ erroneously found that plaintiff did not have a severe mental impairment; (4) whether the ALJ erred in determining that plaintiff did not meet a listing; and (5) whether the Appeals Council erred in not remanding the case to the ALJ.*fn3

III. LEGAL STANDARD

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

IV. DISCUSSION

A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework for determining eligibility for adults who file new applications.*fn4

The first step of the sequential evaluation process, which pertains to substantial gainful activity, is not used for redetermining disability at age 18. (AT 11); see also 20 C.F.R. § 416.987(b). At step two, the ALJ determined that, since May 1, 2009, plaintiff has had the following severe impairment: asthma. (AT 12.) However, at step three, the ALJ determined that, since May 1, 2009, plaintiff did not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 17.)

Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

After careful consideration of the entire record, the undersigned finds that since May 1, 2009, the claimant has had the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except she must avoid even moderate exposure to fumes, odors, dust, gases, poor ventilation, etc. (AT 18.)

At step four, the ALJ found that plaintiff had no past relevant work. (AT 20.) At step five, the ALJ noted that plaintiff was a younger individual age 18-49, had a limited education, and was able to communicate in English. (Id.) The ALJ then found that, since May 1, 2009, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (Id.) The ALJ relied on the testimony of a vocational expert ("VE"), who testified that plaintiff would be able to perform the following representative occupations: (1) day worker, an unskilled medium exertional level occupation with 5,300 positions in the Sacramento area, 95,000 positions in California, and 887,000 positions nationally; (2) factory worker, an unskilled medium exertional level occupation with 1,000 positions in the Sacramento area, 23,400 positions in California, and 409,000 positions nationally; and (3) bench assembler, an unskilled light exertional level occupation with 290 positions in the Sacramento area, 34,000 positions in California, and 218,000 positions nationally. (AT 21.)

Accordingly, the ALJ concluded that plaintiff's disability had ended on May 1, 2009, and that plaintiff had not become disabled again since that date. (AT 21.)

B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

Before proceeding to plaintiff's specific arguments, the court finds it appropriate to summarize the pertinent medical and other documentary evidence.

A March 25, 2009 assessment report and other records from the Folsom Cordova Unified School District show that plaintiff was in 12th grade and in an individualized education program ("IEP") with deficits in the areas of auditory processing, sensory-motor skills, and cognitive abilities, including basic reading skills and reading comprehension. (AT 280-99.) The report indicated that plaintiff demonstrated "an inability to learn which cannot be explained by intellectual, sensory, or other health factors" and that the discrepancy between her predicted and actual achievement was "not primarily the result of a visual, hearing or motor impairment; mental retardation; a serious emotional disturbance; or environmental, cultural difference, or economic disadvantage." (AT 283.) The report also indicated that plaintiff's attendance was poor, but that her behavior was age appropriate, she had consistently tested in the low average range of intellectual ability, she had good verbal skills, she was capable of average performance in her classes if she applied herself, and that she needed to complete her Economics credits to graduate. (AT 281-82, 284-85.) Plaintiff was placed in general education classes and special education classes in a 50/50 ratio, was allowed extended time for completing tests and assignments, and was permitted to have test questions read aloud to her or presented with the use of an audio CD. (AT 287, 290, 293.)

On March 31, 2009, plaintiff was evaluated by consultative examining psychologist Dr. Janice Nakagawa. (AT 300-03.) Plaintiff reported that she had learning problems, had been in special education classes all her life, and had received treatment for asthma with a "breathing machine." (AT 300.) Dr. Nakagawa reviewed plaintiff's previous treatment notes from the Molina Clinic, which indicated "possible anxiety and treatment for asthma." (Id.) During the evaluation, plaintiff stated that she did not know where she was born or raised, she did not know if her mother worked (despite plaintiff having daily contact with her), she did not know where her father lived (despite plaintiff reporting contact with him a couple of days prior to the assessment), and she had "five or four brothers" but did not know their ages. (Id.) Plaintiff stated that she lived with her brother and sister-in-law, who prepared her meals and took her to school, and that she did not do any chores, but only did some homework and watched TV. (AT 301.) Plaintiff initially claimed not to know her height, did not know her weight, gave "grossly inaccurate responses" to the date and sequence of days in a week, did not know the shape of a ball, and claimed that birds have no legs. (Id.) Plaintiff stated that she had received counseling and anger management classes, but did not remember when or why. (Id.)

Dr. Nakagawa described plaintiff as a "vague, imprecise informant with the impression she was making efforts to present in a negative light," noting that there was "hesitancy in her response style to emphasize limitations and had a contrived element." (AT 300-01.) Plaintiff's mood was quiet and her affect non-labile. (AT 301.) During cognitive and memory testing, plaintiff "put forth very limited, inconsistent effort in all testing with the impression she presented in the worst possible light for secondary gain." (Id.) Dr. Nakagawa declined to report plaintiff's IQ scores because of malingering, and opined that the test data was considered unreliable and invalid. (AT 301-02.) Indeed, plaintiff's performance on all of the tests administered suggested malingering, which was confirmed by Dr. Nakagawa's administration of the Test of Memory Malingering ("TOMM"), described by Dr. Nakagawa as the "well-normed test to screen for malingering" and that produced results consistent with malingering. (AT 302-03.) Consequently, Dr. Nakagawa diagnosed malingering and stated that it was impossible to provide any accurate assessment or opinion about plaintiff's functional capabilities with respect to work. (AT 303.)

Thereafter, on April 1, 2009, plaintiff also underwent a complete internal medicine evaluation by consultative examining physician Dr. Joseph M. Garfinkel. (AT 304-08.) Plaintiff's chief complaints were listed as lower back pain and asthma -- she reported having asthma attacks every week or two and frequently using an inhaler. (AT 304.) She described her back pain as non-radiating -- worse with lying on the ground and stretching and better with medication -- and indicated that she did not use an assistive device. (Id.) Dr. Garfinkel reviewed plaintiff's prior medical records and performed a physical examination. (AT 305.) With respect to plaintiff's lungs, he noted that her breath sounds were symmetric, there were no rhonchi or rales, and the expiratory phase was within normal limits. (AT 306.) Plaintiff had no chest tenderness, and cardiovascularly had normal heart sounds and no murmur. (Id.) Dr. Garfinkel found that plaintiff had mostly normal range of motion, a normal straight leg raising test, no back spasm, good tone bilaterally with good active motion, 5/5 strength in all extremities, intact sensation, normal reflexes, and a normal gait, and plaintiff was able to stand and walk on heels and toes. (AT 306-07.) Dr. Garfinkel diagnosed plaintiff with chronic back pain (possibly lumbosacral strain) and a history of asthma. (AT 307.) He opined that plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently; stand or walk for 6 hours in an 8-hour day; and sit for 6 hours in an 8-hour day. (AT 308.) He assessed no postural, manipulative, visual, communicative, or environmental limitations. (Id.)

On April 8, 2009, state agency physician Dr. DeSouza reviewed the record evidence and opined that plaintiff physically had no exertional limitations. (AT 311-15.) However, Dr. DeSouza assessed environmental limitations -- in particular, that plaintiff should avoid concentrated exposure to extreme heat, fumes, odors, dusts, gases, poor ventilation, etc. (AT 314.)

On May 7, 2009, state agency psychologist Dr. Norman Zukowsky also reviewed plaintiff's records, including records from Molina Medical Center and plaintiff's psychological and internal medicine consultative evaluations. (AT 316-30.) Dr. Zukowsky stated that there was insufficient evidence to make a determination regarding plaintiff's mental limitations due to plaintiff's lack of effort in the consultative evaluation. (AT 330.)

A December 9, 2009 Annual Medication Service Plan from Sacramento County Mental Health lists a diagnosis of major depression with psychotic features, rule out bipolar disorder, with economic problems and "other psychosocial and environmental problems," and a GAF of 45.*fn5 (AT 274.) Plaintiff's Abilify prescription was increased from 5 to 10 mg and she was also prescribed Prozac 20 mg. (Id.) Another undated note reflects an assessment of major depression with psychotic features versus bipolar disorder with psychotic features and shows that plaintiff was referred to the "Wellness Recovery Center or Consumer Self-Help for activities or peer support." (AT 272.)

In a January 7, 2010 progress note from Sacramento County Mental Health, Dr. Gregory Jaeck reported that plaintiff usually took her medication, that her response to the medication was fair, and that she denied any side effects. (AT 273.) Plaintiff stated that she continued to hear voices, but that her mood had improved from 4/10 to 6/10. (Id.) Dr. Jaeck observed that plaintiff was neatly dressed, groomed, and oriented with a cooperative attitude, slow motor activity, restricted affect, thought processes/content linear and within normal limits, average intellect, and fair insight and judgment. (Id.) He noted that plaintiff's vegetative symptoms had improved, including not spending all day in bed, being more active, and not having passive or active suicidal ideations, but that she was still struggling with energy and enjoyment. (Id.) He increased her Prozac prescription to 30 mg and increased her Abilify prescription to 15 mg, instructing her to return in about six weeks. (Id.) The record contains no documentation of further visits with Dr. Jaeck.

Subsequently, on January 8, 2010, consultative examining psychologist Dr. Debra Moore performed another consultative evaluation of plaintiff. (AT 340-43.) Plaintiff complained of stress and mental illness. (AT 340.) During this evaluation, plaintiff was able to provide more information about her family and living situation, but stated that she "can't be around a lot of people. I want to be alone all the time. I feel bad about myself, the way I look and dress. I get really anger [sic] and stressed, and sometimes I get anxiety attacks." (Id.) She also stated that "I don't have the strength to look for work and I'm allergic to a lot of stuff." (AT 341.) Plaintiff further stated that she had a hard time sleeping at night, that she basically slept all day, and that she had no clue about her height or weight due to her bad memory. (Id.) Dr. Moore noted that plaintiff's medical history was remarkable for asthma, but that she was not treated with any medications at that time, although plaintiff apparently took low doses of Prozac, Abilify, and Diphenhydrane for depression and sleep. (Id.)

Upon a mental status examination, Dr. Moore described plaintiff as manipulative, noting that:

She was resistant and unwilling to participate in the testing process. None of her statements appeared genuine. Her behavior and statements seemed staged in order to gain sympathy from me. The claimant is an attractive woman. She was dressed in the latest fashion and her clothing was clean and appropriate. Her grooming and hygiene were very good ... Her speech was coherent. She had no difficulty following conversation. Her mood and affect were appropriate. She was oriented to person, place and time. Psychomotor activity was within normal limits. There was no evidence of delusions. No thinking impairment was observed and Ms. Clay denied experiencing auditory or visual hallucinations. Her insight was poor. She was able to be goal directed.

(AT 342.) Dr. Moore administered cognitive and memory tests, but did not record the results due to plaintiff's "need to feign memory and cognitive impairment." (Id.) Dr. Moore did not view plaintiff's scores as accurate, explaining that plaintiff "was asked several times to work to the best of her ability but refused. She was clearly informed that without her full cooperation her results would not be reported, yet she continued to refuse to participate in the testing process." (Id.) Dr. Moore diagnosed plaintiff with malingering and depression (per plaintiff's report). (AT 343.) Dr. Moore opined that although plaintiff does have some level of impairment, she was unable to determine the true capacity of plaintiff's memory and intellectual abilities due to plaintiff's malingering. (AT 342.)

On January 20, 2010, state agency physician Dr. Amon reviewed plaintiff's records and assessed environmental limitations only, opining that plaintiff should avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, etc. (AT 344-48.)

On April 9, 2010, state agency psychiatrist Dr. Meenakshi also reviewed plaintiff's records, including plaintiff's previous school records and consultative psychological evaluations, and opined that there was insufficient evidence to make a determination regarding plaintiff's mental limitations due to her malingering. (AT 349-59, 360-63.)

A one-page May 3, 2010 letter by Dr. H. Soliman on letterhead of the Consumers Self Help Center Wellness & Recovery stated that plaintiff "is a patient at the Wellness and Recovery Center. She is currently being treated for mental health condition [sic] the symptoms of which make it difficult for her to maintain employment. Working exacerbates her symptoms. Please contact our clinic if you have any further questions." (AT 380.) However, the letter contained no address or contact information. (Id.)

The record also contains a one-page February 24, 2011 letter by an individual named William Smith Waters on letterhead of the Consumers Self Help Center Wellness & Recovery, this time with an address and telephone number. (AT 389.) It is unclear from the letter whether William Smith Waters is a physician or an administrative employee, and the letter largely repeated the contents of Dr. Soliman's letter. (Id.) Specifically, the letter states that plaintiff "was a patient at the Wellness and Recovery Center beginning November 10, 2009 and was discharged on [July 12, 2010].*fn6 She was being treated for mental health condition [sic] the symptoms of which made it difficult for her to maintain employment. Working exacerbates her symptoms of depression. Our records noted her diagnosis as of December 9, 2009 is as follows; Major Depression with psychotic features (296.34). Please contact our clinic if you have any further questions." (Id.)

With this record evidence in mind, the court now turns to plaintiff's specific arguments.

1. Whether the ALJ failed to adequately develop the record Plaintiff first contends that the ALJ failed to adequately develop the record -- more specifically, that the ALJ did not make sufficient efforts to obtain the alleged remainder of plaintiff's mental health treatment records, and failed to contact plaintiff's treating providers or subpoena their testimony for further clarification of their opinions. This argument is devoid of merit.

It is well established that a claimant bears the burden of providing medical and other evidence that support the existence of a medically determinable impairment. Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) ("At all times, the burden is on the claimant to establish her entitlement to disability insurance benefits."). Indeed, it is "not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so." Yuckert, 482 U.S. at 146 n.5.

Nevertheless, as the Ninth Circuit Court of Appeals has also explained: The ALJ in a social security case has an independent duty to fully and fairly develop the record and to assure that the claimant's interests are considered. This duty extends to the represented as well as to the unrepresented claimant. When the claimant is unrepresented, however, the ALJ must be especially diligent in exploring for all the relevant facts ... The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests. Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.

Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and quotation marks omitted). "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id. However, as some courts have persuasively observed, the ALJ "does not have to exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning. The standard is one of reasonable good judgment." Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (citation omitted).

Here, the ALJ continued the case at the first October 7, 2010 hearing to provide plaintiff with an opportunity to obtain counsel. (AT 78-87.) Then, at the second December 7, 2010 hearing, the ALJ noted receipt of the short May 3, 2010 letter by Dr. Soliman, but expressed concern about the lack of medical evidence and treatment records, and again continued the hearing to supplement plaintiff's medical records. (AT 67-77.) Plaintiff represented that she had more medical evidence, that she had switched from treatment by Dr. Soliman at the Consumers Self Help Center (which she testified was getting ready to shut down) to treatment by another doctor at The Effort, and that she was not receiving treatment from anywhere else. (AT 72-75, 269.) The ALJ indicated that he would order plaintiff's medical records from the Consumers Self Help Wellness and Recovery Center and from The Effort. (Id.)

On December 27, 2010, the Commissioner received a letter-brief dated December 7, 2010, prepared by Legal Services of Northern California on plaintiff's behalf. (AT 268-76.) The letter-brief attached the above-mentioned December 9, 2009 Annual Medication Service Plan for Sacramento County Mental Health, the January 7, 2010 progress note by Dr. Jaeck, the undated form documenting a referral to "Wellness Recovery Center or Consumer Self-Help for activities or peer support," and a list of plaintiff's medications, for a total of about 5 pages. (AT 272-76.) Thereafter, on January 12, 2011, the Commissioner sent plaintiff a letter indicating that it had requested records from the Wellness and Recovery Center and The Effort, but that it had not received a response. (AT 267.) The letter requested plaintiff to urge her treating sources to send her medical records to the Commissioner as soon as possible, and reminded plaintiff to also forward any records in her possession that had not already been provided. (Id.)

Subsequently, at the third January 27, 2011 hearing, the ALJ noted that he had not received any further documents from the Wellness and Recovery Center or The Effort in response to the Commissioner's requests. (AT 43-45, 53-54.)*fn7 Plaintiff then stated that she was receiving mental health treatment from a Dr. Weinstock at The Effort and that he had apparently faxed records to the ALJ. (AT 39-41.) The ALJ ultimately agreed to leave the record open for another 30 days to allow plaintiff to send in any additional medical evidence she had or could obtain from her treating sources. (AT 64-65.) The ALJ never received any further evidence from plaintiff's treating sources, except for the above-mentioned one-page February 24, 2011 letter by William Smith Waters from the Wellness and Recovery Center, which attached no medical records. (AT 389.)

As is evident from the discussion above, the ALJ made significant efforts to fully and fairly develop the record by granting appropriate hearing continuances, requesting records from plaintiff's treating sources directly, reminding plaintiff at the hearing(s) and by letter to urge her treating sources to respond to the Commissioner's requests, and granting plaintiff additional time to supplement the record with medical evidence. Additionally, in light of the limited mental health evidence, plaintiff was twice sent for consultative evaluations, both of which resulted in insufficient evidence of mental limitations due to malingering. Although plaintiff argues that the ALJ should also have contacted, or subpoenaed the testimony of, plaintiff's treating providers, plaintiff cites no authority for the proposition that an ALJ is required to pursue every possible line of inquiry even when reasonable methods of obtaining the relevant information had already been used.*fn8

The court declines to create such a new and onerous requirement and instead leaves it to the sound discretion of the ALJ to determine which methods are best suited to fairly develop the record in a particular case, applying a rule of "reasonable good judgment." Hawkins, 113 F.3d at 1168. While it may be difficult in some borderline cases to determine whether further record development was warranted, that problem is not present in this case. Here, the ALJ undoubtedly went above and beyond to give an unrepresented claimant with alleged mental impairments a meaningful opportunity to present her case and develop the record regarding her mental health impairments and treatment.

Plaintiff raises an additional issue as to the medical evidence of record, noting that although the Commissioner had been in possession of plaintiff's records from the Molina Medical Group/Clinic (where plaintiff received primary health care services from about October 1994 to September 2009) and the Eastern Medical Center (where plaintiff was seen on November 3, 2009), these records were not included in the present administrative transcript. (AT 114.) The Commissioner concedes that the actual records were inexplicably not included in the administrative transcript, but argues that the issue is essentially a red herring. The court agrees.

Although the actual records do not appear in the administrative transcript, they were summarized in the disability hearing officer's May 12, 2010 decision, as well as in the case analysis reports reviewed and signed by the state agency physicians. (AT 114-15, 118, 327-28, 360-61.) Significantly, the records from both the Molina Medical Group and the Eastern Medical Center primarily relate to plaintiff's physical ailments, including her asthma. (Id.) However, the ALJ found plaintiff's asthma to be a severe impairment, he incorporated the most restrictive asthma limitations in the record into the RFC (AT 18, 347), and plaintiff does not challenge the ALJ's findings with respect to plaintiff's physical limitations in her briefing before this court. Indeed, at the administrative hearing, plaintiff did not claim any distinct physical problems as the basis of her alleged disability. (AT 41-42.)

During a March 2008 visit to the Molina Medical Group, plaintiff did report episodes of panic attacks/social phobias and requested a mental health referral, but a subsequent September 2008 treatment note only revealed a complaint of a sore throat. (AT 328.) The final September 2, 2009 treatment notes from Molina Medical Group indicated that plaintiff requested refills for her asthma medication and a pregnancy test, and that her examination was otherwise normal. (AT 361.) As such, these records do not appear to contain any probative information regarding plaintiff's mental health in addition to what already appears in the administrative transcript. Most of the Molina Medical Group records also relate to the period prior to May 1, 2009, the date that plaintiff's disability was found to have ended. Moreover, consultative examining psychologist Dr. Nakagawa specifically indicated on March 31, 2009, that she had reviewed plaintiff's treatment notes from the Molina Medical Group, which would have included the March 2008 note regarding plaintiff's reported mental symptoms. (AT 300.) Therefore, these records were actually considered by Dr. Nakagawa in formulating her opinion, on which the ALJ in turn relied.

Accordingly, the court finds that the Commissioner's failure to include the records from the Molina Medical Group and the Eastern Medical Center in the administrative transcript was inconsequential to the ultimate non-disability determination. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (harmless error analysis applicable in judicial review of social security cases).

2. Whether the ALJ improperly weighed the medical and psychological opinion evidence

Plaintiff also contends that the ALJ improperly rejected the opinions of plaintiff's treating providers regarding her mental impairments and gave undue weight to the opinions of the consultative examining psychologists and the state agency physicians.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,*fn9 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

The court finds that the ALJ permissibly gave little weight to the opinions of plaintiff's treating providers, because they are conclusory and supported by minimal clinical findings. The May 3, 2010 letter by Dr. Soliman and the February 24, 2011 letter by William Smith Waters (who may or may not be a physician) are entirely conclusory, stating merely that plaintiff's symptoms make it difficult for her to maintain employment and that working exacerbates her symptoms. (AT 380, 389.) Dr. Soliman's letter did not even list a diagnosis. (AT 380.) Both letters are unaccompanied by any clinical findings, test results, or therapy/visit notes. "The ALJ need not accept an opinion of a physician-even a treating physician-if it is conclusionary and brief and is unsupported by clinical findings." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Magallanes, 881 F.2d at 751); see also Tonapetyan, 242 F.3d at 1149 (holding that the ALJ properly rejected the opinion of a treating physician because it was "unsupported by rationale or treatment notes, and offered no objective medical findings to support the existence of [the claimant's] alleged conditions").

As the ALJ also noted, in addition to the lack of treatment records or documentation over a significant period of time, there is also little foundation for Dr. Soliman and Dr./Mr. Smith Waters's form opinions that working exacerbated plaintiff's symptoms, because plaintiff had never worked and "pretty consistently testified that she has never even looked for work." (AT 13, 36-37.)

While Dr. Jaeck provided at least some notes in his January 7, 2010 assessment of plaintiff, most of his clinical findings are fairly benign. (AT 273.) Although plaintiff had a restricted affect and slow motor activity, and she claimed to hear voices and struggle with "energy and enjoyment," Dr. Jaeck stated that plaintiff's mood had improved, she was oriented and neatly dressed/groomed, she did not have suicidal or homicidal ideations, her attitude was cooperative, her thought processes and content were linear and within normal limits, her intellect was average, and her insight and judgment were fair. (Id.) Plaintiff's response to medications was fair. (Id.) These findings do not necessarily suggest significant impairment, and the notes provide no insight into plaintiff's work-related limitations. Dr. Jaeck's progress note does not even explain the bases of the diagnoses of major depression with psychotic features and bipolar disorder, and certainly does not support the very low GAF score, indicative of serious symptoms and impairment, found in plaintiff's Annual Medication Service Plan at Sacramento County Mental Health. (AT 272-74.) Additionally, there are no documented further visits with, or treatment notes by, Dr. Jaeck, and the only findings appear to be from a single visit with plaintiff (although the report, noting improvement, suggests that he may have seen plaintiff before). (AT 13, 273.) In light of this limited treatment relationship, as documented by very limited treatment records, the ALJ also permissibly gave Dr. Jaeck's opinion reduced weight.

Plaintiff argues that more treatment records exist and that the ALJ should have obtained them. For the reasons discussed above, the court finds that argument unpersuasive and holds that, based on the record before the ALJ, he provided specific and legitimate reasons for giving limited weight to the opinions of plaintiff's treating providers regarding her mental limitations.

The ALJ also justifiably relied on the opinions of consultative examining psychologists Drs. Nakagawa and Moore to conclude that there was insufficient evidence regarding plaintiff's mental limitations. As outlined above, their diagnoses of malingering and consequent opinions of insufficient evidence were based on in-person mental evaluations, objective psychological testing, and their independent clinical findings, which were much more detailed, thorough, and well supported than any of the findings in plaintiff's limited treatment records. As such, their opinions constituted substantial evidence on which the ALJ was entitled to rely.

Plaintiff argues that the opinions of the consultative psychologists cannot constitute substantial evidence, because these professionals were not provided with adequate records regarding plaintiff's mental impairments. In particular, plaintiff claims that the consultative psychologists were not provided with copies of plaintiff's treatment records from Molina Medical Group or the Eastern Medical Center, plaintiff's complete mental health treatment records, plaintiff's school records, and the functional reports completed by plaintiff's mother and sister. Generally, the regulations require that a consultative examiner be provided with a claimant's available medical or mental health treatment records. See 20 C.F.R. § 416.917 ("If we arrange for [a consultative examination] or test, we will...also give the examiner any necessary background information about your condition.").

For the same reasons discussed above in regards to the Commissioner's failure to include plaintiff's records from Molina Medical Group and the Eastern Medical Center in the administrative transcript, any failure to provide these records to the consultative psychologists was harmless. These records primarily relate to plaintiff's physical ailments, which were not the subject of the psychological evaluations and are not an issue raised in plaintiff's briefing before this court. Moreover, Dr. Nakagawa specifically noted that she had reviewed plaintiff's records from the Molina Medical Group, and she therefore considered them in formulating her opinion. (AT 300.)

Additionally, the court finds that the very limited and largely conclusory treatment records from plaintiff's treating providers that do appear in the administrative transcript could not plausibly have changed the consultative psychologists' assessments. Notably, this is not the type of case where the Commissioner failed to provide a consultative examiner with well-documented, detailed treatment notes and test results generated in the course of an extensive treatment relationship.

Likewise, there is no indication that a review of plaintiff's school records would have materially affected the opinions of the consultative psychologists. Although plaintiff's school records certainly show that she had a learning disability and was placed in an IEP with special education services, both consultative psychologists were well aware that they were evaluating plaintiff for an alleged learning disorder and/or cognitive impairments, among other mental disorders. (AT 300, 340.) For this reason, plaintiff's speculative assertion that the consultative psychologists would have provided plaintiff with more accommodations during the testing process and would have interpreted her test results differently had they reviewed her school records does not hold water. Both Drs. Nakagawa and Moore were licensed psychologists alerted to plaintiff's alleged difficulties, and it can reasonably be presumed that they had the clinical expertise to administer the psychological tests correctly and distinguish true difficulties with the test-taking process from malingering. Their findings of malingering were based on their personal evaluation and testing of plaintiff.

Furthermore, plaintiff's school records actually suggest that she is capable of far more than what she represented to the consultative psychologists -- even though plaintiff received special education services and accommodations, such as extended time for completing tests/assignments, the school records also note that plaintiff had consistently tested in the low average range of intellectual ability, she had good verbal skills, she was capable of average performance in her classes if she applied herself, and she was placed in general education classes and special education classes in a 50/50 ratio. (AT 280-87, 290, 293.) Moreover, state agency psychiatrist Dr. Meenakshi specifically reviewed plaintiff's school records along with the evaluations of the consultative examining psychologists and nonetheless agreed that a finding of insufficient evidence of mental limitations was appropriate. (AT 363.)

Finally, plaintiff's argument that the Commissioner's failure to provide the consultative psychologists with functional reports/statements by plaintiff's mother and sister resulted in prejudicial error lacks merit. As an initial matter, although the ALJ has to consider (and in this case, did consider) the lay testimony and statements of relatives, plaintiff provides no authority that such information, which does not constitute medical evidence, is necessarily required to be provided to a consultative examiner.

Moreover, the ALJ provided germane reasons for discounting the testimony of plaintiff's relatives. The Ninth Circuit has held that lay testimony as to a claimant's symptoms and functional limitations is "competent evidence that the ALJ must take into account" and "cannot be disregarded without comment." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (emphasis in original) (citation and quotation marks omitted). To discount competent lay witness testimony, the ALJ "must give reasons that are germane to each witness." Id. However, the ALJ is not necessarily required "to discuss every witness's testimony on a individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness." Id.

Not surprisingly, plaintiff does not directly challenge the ALJ's determination regarding her own credibility before this court. In support of his credibility determination, the ALJ pointed to the findings of malingering by the consultative examining psychologists. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (nothing that an ALJ may reject a claimant's testimony upon finding evidence of malingering). The ALJ also provided several other specific, clear, and convincing reasons for discounting plaintiff's testimony and statements, including the lack of supporting treatment records and the inconsistencies between plaintiff's statements. (AT 13-14, 16, 18.) For example, although plaintiff testified that she had to have someone with her when using the bus, because she "wouldn't be able to figure out where to get on or off," previous function reports indicated that plaintiff was able to independently use public transportation. (AT 16, 116, 217, 226, 234.) On January 7, 2010, plaintiff told Dr. Jaeck that she was having auditory hallucinations, but the very next day, on January 8, 2010, plaintiff denied experiencing auditory or visual hallucinations upon questioning by consultative examining psychologist Dr. Moore. (AT 273, 342.)

As the ALJ observed, many of these reasons for rejecting plaintiff's credibility apply equally to the statements of plaintiff's relatives. (AT 20.) The ALJ also noted that plaintiff's sister "failed to complete the questions on how much time she and her sister spend together, how often they see each other, or what they do together, leaving the undersigned with no basis, other than she and the claimant are sisters, for her information to be found credible. This report also failed to answer, or noted "unknown" to a number of questions, again casting doubt on the reporter's knowledge concerning the claimant's day to day activities and functioning. (AT 20, 231-38.) Therefore, the ALJ provided germane reasons for discounting the lay statements of plaintiff's relatives, and the consultative examining psychologists' failure to review these statements did not result in prejudicial error.

In sum, the court finds that the ALJ appropriately gave little weight to the opinions of plaintiff's treating providers and properly relied on the opinions of the consultative examining psychologists, which constituted substantial evidence. Also, because the opinions of state agency psychologist Dr. Zukowsky and state agency psychiatrist Dr. Meenakshi were consistent with the opinions of the consultative examining psychologists and the record evidence as a whole, these opinions constituted additional substantial evidence on which the ALJ could permissibly rely. See Tonapetyan, 242 F.3d at 1149 (holding that a non-examining expert's opinion "may constitute substantial evidence when it is consistent with other independent evidence in the record."). As such, the court finds no error in the ALJ's weighing of the opinion evidence.

3. Whether the ALJ erroneously found that plaintiff did not have a severe mental impairment at step two

An impairment or combination of impairments is not severe at step two "if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 416.921(a). Generally, in evaluating a mental impairment, if there is no evidence of episodes of decompensation, and the claimant's degree of limitation with respect to activities of daily living; social functioning; and concentration, persistence, or pace are rated as "none" or "mild," the impairment will generally be found to be not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the claimant's ability to do basic work activities. See

20 C.F.R. § 416.920a(c), (d)(1).

In this case, the ALJ engaged in a detailed analysis of the available evidence, ultimately concluding that, when properly weighed, the evidence showed that plaintiff had at most mild limitation in activities of daily living; social functioning; and concentration, persistence, or pace; and had experienced no episodes of decompensation. (AT 12-17.) The ALJ also generally observed that:

While [plaintiff] has a history of special education due to a learning disability documented in her school records, any current information about her mental functioning does not exist, due to the lack of treatment records, as well as the claimant's malingering behavior at both psychological exams conducted by the State Agency in an effort to establish a diagnosis as well as the effect it may or may not have on her working capacities. Thus, the record is insufficient to accurately assess her mental abilities. This record overall leads the undersigned to conclude that the claimant's medically determinable mental impairments of learning disorder and depression, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere. (AT 15.)

The court finds the ALJ's analysis to be supported by substantial evidence in the record as a whole. If a claimant fails to cooperate with the Commissioner in obtaining evidence, the ALJ is required to make a decision based on the available information. 20 C.F.R. § 416.916.

Although plaintiff posits a different interpretation of the evidence, the ALJ's determination at step two was rational and well supported, and the court declines plaintiff's invitation to second guess it.

Furthermore, even if the opinions in plaintiff's limited mental health treatment records were fully credited, they do not necessarily show that plaintiff had a severe mental impairment for a period of at least twelve (12) months. 42 U.S.C. § 1382c(a)(3)(A). The letter from William Smith Waters shows that plaintiff was a patient at the Wellness and Recovery Center between November 10, 2009, and July 12, 2010, and the available mental health treatment records are all from that discrete period. (AT 272-74, 380, 389.) Additionally, even assuming arguendo that plaintiff's mental impairments should have been deemed severe at step two, any such error was harmless. The representative occupations that the ALJ found plaintiff could perform based on the VE's testimony were all unskilled positions. (AT 21.) Nothing in the present record evidence, as properly weighed by the ALJ, affirmatively suggests that plaintiff's mental impairments, even if technically deemed severe at step two, would preclude her from performing the representative unskilled positions at step five.

4. Whether the ALJ erred in determining that plaintiff did not meet a listing Finally, in light of the above discussion, plaintiff's argument that her impairments meet or medically equal a listing is so insubstantial as not to merit any significant consideration. The record evidence does not even remotely establish that plaintiff's impairments, singly or in combination, meet or equal the criteria of Listing 12.04 (affective disorders), Listing 12.05 (mental retardation), or any other listing. Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990) ("For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria ... For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.") (emphasis in original); see also Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (explaining that the claimant "bears the burden of proving that ... she has an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the Commissioner's regulations.").

The low GAF score assigned on December 9, 2009, does not establish that plaintiff meets or equals a listing. As an initial matter, the GAF scale "does not have a direct correlation to the severity requirements in [the Commissioner's] mental disorders listings." 65 Fed. Reg. 50746-01, at 50764-65 (Aug. 21, 2000). Moreover, an ALJ is permitted to discredit a GAF score where it is unsupported by objective evidence. Clark v. Astrue, 2009 WL 542166, at *6 (C.D. Cal. Mar. 4, 2009). In light of the minimal and conclusory treatment records, the ALJ justifiably gave the GAF score little weight.

Plaintiff also argues that the ALJ should have required consultative examining psychologists Drs. Nakagawa and Moore to provide their raw scores and scales on plaintiff's IQ test results to determine whether she met Listing 12.05 for mental retardation. This argument lacks merit, because both Drs. Nakagawa and Moore expressly found that the test scores were invalid and unreliable because of plaintiff's malingering. (AT 301-02, 342.) Because those conclusions were well supported by the consultative examining psychologists' reports, the ALJ appropriately gave the test results no weight and was under no obligation to request the raw scores from Drs. Nakagawa and Moore.

5. Whether the Appeals Council erred in not remanding the case to the ALJ Because the court finds no prejudicial error in the ALJ's analysis and determinations, the court further concludes that the Appeals Council did not err in denying plaintiff's request for review.

V. CONCLUSION

For the foregoing reasons, the court finds that the ALJ appropriately developed the record; that his findings were supported by substantial evidence in the record as a whole; and that the Appeals Council did not err in denying plaintiff's request for review based on alleged errors by the ALJ.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (dkt. no. 14) is DENIED.

2. The Commissioner's cross-motion for summary judgment (dkt. no. 15) is GRANTED.

3. Judgment is entered for the Commissioner.

4. The Clerk of Court is directed to close this case.

IT IS SO ORDERED.


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